State of Utah v. Meyer

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Tina Caywood Meyer,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000895-CA

F I L E D
October 12, 2001 2001 UT App 297 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorney:
Rosalie Reilly, Monticello, for Appellant -----

Before Judges Jackson, Bench, and Orme.

JACKSON, Associate Presiding Judge:

Tina Caywood Meyer appeals her conviction of Assault, a Class B Misdemeanor, under Utah Code Ann. § 76-5-102 (1999). Meyer argues only that the trial court erred by not giving a jury instruction on self-defense.(1) The State did not file a responsive brief nor challenge Meyer's assertions by letter, memorandum, or otherwise, nor in anyway suggest that Meyer is not entitled to relief. We reverse and remand for a new trial.

"'Whether [a] trial court's refusal to give a proposed jury instruction constitutes error is a question of law, which we review for correctness.'" Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77,¶38, 429 Utah Adv. Rep. 3 (alteration in original) (citation omitted). We recently stated that "'"[f]ailure to give requested jury instructions constitutes reversible error only if their omission tends to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advises the jury on the law."'" State v. Stringham, 2001 UT App 13,¶17, 17 P.3d 1153 (citation omitted).

Here, Jenni Monteath testified that Meyer "grabbed [Monteath's] hair on both sides" and hit Monteath ten or twelve times with a closed fist. On the other hand, Meyer's husband testified that Monteath "came out and grabbed [Meyer] by the head." Meyer herself, testified that Monteath "pulled [Meyer] over into the side of the apartment" and began "scratching and clawing at [Meyer's] face." Meyer also testified that she never hit back and that her main "concern was pretty much just trying to get out of the situation."

A jury instruction on self-defense must be given "when the defendant has presented sufficient evidence that [the defendant's] assertion of self-defense rises to a conscious level in the minds of jurors." State v. Garcia, 2001 UT App 19,¶8, 18 P.3d 1123. "We are not concerned with the reasonableness, nor the credibility of the defendant's evidence relating to his [or her] claim of self-defense." State v. Torres, 619 P.2d 694, 695 (Utah 1980). We only decide whether "there is a basis in the evidence . . . which would provide some reasonable basis for the jury to conclude" that Meyer acted in self-defense. State v. Knoll, 712 P.2d 211, 214 (Utah 1985).

While Meyer did not testify that she was acting in self-defense, she requested a jury instruction regarding self-defense. Further, although the testimony at trial conflicted, "there is a basis in the evidence . . . which would provide some reasonable basis for the jury to conclude" that Meyer acted in self-defense. Id. Thus, we conclude that the evidence presented justifies an instruction on self-defense. See Torres, 619 P.2d at 695. Omitting the jury instruction "'"insufficiently . . . advise[d] the jury on the law,"'" Stringham, 2001 UT App 13 at ¶17 (citation omitted), because it did not allow the jury to consider alternate theories presented at trial. Accordingly, the trial court's refusal to give the self-defense instruction was reversible error.

The court stated that it refused to give the instruction because "self-defense [didn't] fit" with Meyer's testimony that any touching she did was incidental or accidental. The court agreed not to give the self-defense instruction if the prosecution would not argue that Meyer recklessly caused the injury because Meyer's statement that she just wanted to get out of the situation was "a valid defense too," and self-defense was inconsistent with Meyer's theory. However, Meyer also testified that (1) her "concern was pretty much to get out of" the situation; (2) she "had one hand in [Monteath's] hair, pulling [Monteath's] hair, because [Monteath] had her hand pulling" Meyer's hair; and (3) she put her "hand down on [Monteath's] forehead to push [her]self up." Further, both Meyer and Meyer's husband testified that Monteath was the aggressor. Thus, Meyer's testimony included assertions that she had used force to extract herself from a situation where Monteath was the aggressor. Although Meyer testified that any touching was incidental or accidental, other testimony on the record is consistent with self-defense.

Accordingly, we reverse and remand for a new trial.
 
 
 

Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 

Russell W. Bench, Judge
 
 

Gregory K. Orme, Judge

1. Self-defense can be asserted when the defendant "reasonably believe[d] that force [was] necessary to defend him[- or her]self or a third person against such other's imminent use of unlawful force." Utah Code Ann. § 76-2-402 (1999).